A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

Any serious attempt to go into the intricacies of divorce law and procedure would, of course, here be out of place. Every phase of the subject, as illustrated by the decisions and practice of the various state courts, is treated with sufficient fulness and remarkable clearness in Bishop's work on Marriage, Divorce, and Separation, but a few details of more general interest may be mentioned. As a rule, the legitimacy of the children, with the right of inheritance, is not affected by a divorce, even when it occurs for the adultery of the mother, but that question is left for separate determination by the courts in the usual way.[110] So also when a supposed second marriage is dissolved, because entered into by mistake while the former wife or husband was living, the children are regarded as the legitimate issue of the parent who at the time of the marriage was capable of contracting, provided the union was made in good faith.[111] When the validity of a marriage or the effect of any former decree of divorce or nullity is doubted, the question may be tried by the court on filing a libel, as in case of divorce.[112] Sometimes the husband and wife are expressly allowed to be witnesses in the suit;[113] or the statute may grant trial by jury at the election of the parties.[114] Usually the court may authorize the wife to resume her maiden name;[115] and occasionally it is empowered to change the name of the minor children.[116]

c) Alimony, property, and custody of children.—During the pendency of a suit for divorce the court is authorized to make orders forbidding the husband to put any restraint upon the personal liberty of the wife, and for the care and custody of the minor children. At the same time it may require the husband to deposit money to enable the wife to maintain or defend the libel;[117] and just provision may also be made for her temporary alimony or support.[118] Vermont grants the county court authority, when the parents are living separate, though not divorced, to make orders for the "care, custody, maintenance and education" of the minor children. Similar orders relating to the children and for the support of the wife, in that state, may be made when without just cause a husband "fails to furnish suitable support to his wife, or has deserted her, or when the wife, for a justifiable cause, is actually living apart from her husband."[119] In like manner, in all the states, the court may make proper orders for the care, custody, and education of the children after the divorce, and for permanent alimony to the wife. In Vermont, New Hampshire, and Massachusetts alimony, or an allowance in the nature of alimony, may be decreed to the husband as well as to the wife.

A divorce for the cause of adultery committed by the woman, by the Massachusetts statute, does not affect her title to her separate real and personal estate during her life, except that the court may award the man a just share of it for the support of the minor children decreed to his custody. Should the divorced wife marry again, the former husband's interest in such separate estate, after her death, ceases, except as thus required for the children's alimony. After divorce the wife is not entitled to dower; unless the cause be the husband's infidelity or his sentence to confinement at hard labor; and except when the husband dies before a decree nisi, granted on the wife's petition, has become absolute.[120] The Massachusetts law, as thus broadly outlined, is typical of that which prevails throughout New England, although there are some important variations in matters of detail.[121] The Vermont statute, in particular, is very clear and elaborate in its provisions. "Upon the dissolution of a marriage, by a divorce or decree of nullity, for any cause except that of adultery committed by the wife," the latter is entitled to the immediate possession of her real estate. In all cases "the court may decree to the wife such part of the real and personal estate of her husband, as it deems just, having regard to the circumstances of the parties respectively; and it may require the husband to disclose on oath, what real and personal estate has come to him by reason of the marriage, and how the same has been disposed of, and what portion thereof remains in his hands." There is also provision for placing the property awarded the wife in the hands of trustees in her behalf.[122]

Finally, it may be noted, that only in recent years have any of these states made any adequate provision for gathering and publishing the statistics of divorce.[123]

II. THE SOUTHERN AND SOUTHWESTERN STATES[124]

a) Legislative divorce.—In the South, as elsewhere[125] shown, divorces were at no time granted during the provincial era. Even the provisions of the English ecclesiastical law were not in force, because tribunals competent to administer them were not created. Separation by mutual consent, or some sort of separate maintenance, was the only kind of relief then obtainable. Indeed, after independence was declared, it was more than half a century in Virginia and Maryland, and many years in North Carolina, before the courts were granted even partial jurisdiction in divorce causes.

The legislature, however, was not inactive. Conservative as southern sentiment is supposed to have been regarding dissolution of the marriage bond, it is precisely in the South that legislative divorce was tried on the widest scale and where it bore its most evil fruit. It seems probable that from the earliest times following the Revolution, in some of these states, marriages were dissolved by ordinary bills passed by the assemblies. Of these a few examples have been discovered, although they are all of relatively late origin. The earliest appear in the Maryland statutes. Thus, by the act of December 21, 1790, the marriage between John Sewall, of Talbot county, and Eve, his wife, was declared null and void, on the ground, set forth by John in his petition, that, having been convicted of bearing a "mulatto child," his wife with the child had been condemned to servitude and sold, according to the cruel statute of 1715 "in such case made and provided."[126] Another instance of absolute divorce occurred in 1805. It seems that on account of his misconduct Archibald Alexander and his wife Susanna had "mutually agreed to live separate and apart from each other, and that articles of separation were entered into between them for that purpose." While they so lived apart the "said Susanna" took "upon herself the charge of six children, two of which were the children of the said Alexander." But, continues the petition, "in the month of July last there was a well founded report" that Archibald was dead; and "under this belief" Susanna formed a second marriage with John Musket. Accordingly, on their prayer, the legislature declared the former contract "absolutely and to all purposes null and void," and Archibald and Susanna "divorced a vinculo matrimonii," but without affecting the rights or legitimacy of the children of the first marriage.[127]

The session laws for 1806-7 afford five more examples of absolute divorce. On January 3, 1807, Pamela Sampson got herself released from her husband George, because they had long lived "on terms incompatible with the happiness of the conjugal union, which every day, if possible, increased, owing to intoxication which deranged his mind." On the next day Catherine Dimmett, finding herself in the same sad relation with James, her spouse, alleges that she "considers herself in hourly danger from his violence, as he not only attempted his own life, by cutting his own throat in the most barbarous and shocking manner," but has also repeatedly threatened hers, "thereby showing himself free from every moral restraint, and prepared for the commission of the most desperate and bloody deeds." Moreover, he remains in "one continuous state of intoxication, and freely indulges in every species of irregularity;" for all of which the worthy lawmakers felt justified in granting her prayer. On the same day, for cause not named, the nuptial tie of Benjamin and Ruth Fergusson was dissolved, but on condition that the act shall have no force unless the husband shall "give bond, with good and sufficient authority, to be approved by the orphan's court of Baltimore County, ... for the payment of the sum of thirty dollars per annum to the said Ruth during her life, so long as the said Benjamin shall live." In the other two cases no ground is assigned.[128]

During the following years the legislature was from time to time appealed to for relief.[129] In 1830 the first act regulating divorce appears in the statute-book. This law provides for judicial process in the initial stages, but leaves the final action to the assembly. It is made "lawful for any person who may intend to apply to the legislature for a divorce, to file a petition, stating the ground of his application, in the court of the county in which the person from whom he desires to be divorced resides." Upon the "filing of such petition, a subpoena shall issue to the party implicated, to appear and answer the same; and, upon such appearance, it shall be the duty of the court to issue a commission to a person or persons therein to be named, to take such testimony as the respective parties require." This testimony, taken after twenty days' notice, must be returned to the clerk of the court issuing the process, who is directed to forward it to the legislature together with "the petition, answer, and all other proceedings had under the application."[130]